R v Regal Park Homes Inc

Regina ex rel. Holmes v. Regal Park Homes Inc.

9 O.R. (3d) 469, [1992] O.J. No. 1215
Ontario Court (Provincial Division) — Fairgrieve Prov. Div. J. | February 4, 1992

Background

In June 1987, Regal Park Homes Inc. was charged with 78 contraventions of the Building Code Act. What followed was a legal nightmare that stretched over four years and three months. The first trial began in November 1987 but consumed 16 full court days and nine part days over 17½ months, ending in May 1989. The justice of the peace then resigned without delivering judgment, forcing a new trial to be ordered. The defendant challenged that order, leading to more appeals and delays until July 1991.

When the case finally came before Justice of the Peace Starr in September 1991, she granted a stay of proceedings under s. 11(b) of the Charter, finding the 51-month delay violated the defendant's right to be tried within a reasonable time. Instead of filing an appeal within the required 30-day period under s. 8 of R.R.O. 1980, Reg. 819, the prosecutor mistakenly sought a prerogative remedy (certiorari and mandamus). That application was dismissed in January 1992 because s. 125(3) of the Provincial Offences Act clearly precluded prerogative remedies where an appeal was available.

Issues

1. Should the court grant an extension of time under s. 85 of the Provincial Offences Act to permit a late appeal?
2. What factors must be considered when determining whether to extend the appeal deadline?

The Extension of Time Test

The court applied the established four-factor test from R. v. Gruener and R. v. Scheller: (1) intention to appeal within the time limited; (2) sufficient merit to the appeal; (3) due diligence or reasonable excuse for the delay; and (4) whether refusal would amount to a denial of justice. While the prosecutor satisfied the first factor by showing intent to challenge the stay (even through the wrong procedure), they failed catastrophically on the second factor.

Justice Fairgrieve found the 51-month delay "grossly excessive" and that there was no "even a remote possibility that an appellate court would reverse the impugned decision." The delay included massive trial inefficiencies, judicial resignation mid-case, and appeals that stretched the proceedings far beyond any reasonable timeframe. The court noted that while the defence tactics prolonged proceedings, this didn't constitute a waiver of Charter rights, and neither party could be blamed for systemic delays.

On the third factor, the court was particularly critical of the prosecutor's lack of diligence. Despite having clear authority from R. v. Beason (1983) that stays were appealable, and despite receiving advice from Crown counsel that an appeal was proper, the prosecutor chose the wrong procedural route. The court found "no reasonable excuse for not initiating the appeal within the appeal period."

Key Takeaway

Even prosecutors must follow deadlines, and courts won't extend time for hopeless appeals based on procedural mistakes.

This case demonstrates that extension applications require genuine merit — not just technical arguments about trial management. When delay reaches 51 months, especially with multiple systemic failures, no appellate court will find that reasonable under s. 11(b) of the Charter.